Nuts & Boalts

Stories from the fruits and nuts of the University of California, Berkeley, School of Law (Boalt Hall)

Tuesday, February 23, 2010

Agent Hol-land to the Rescue

This instructional video, on how to navigate Boalt Hall now that the main corridor has been blocked off, is something I really could have used during my 1L year. It would have prevented an entire generation of Berkeley Law attorneys from knowing me as "that guy who got 60 admits lost on a tour of Boalt Hall on Admitted Students Day."

On a side note, the email containing this video included this warning: "due to the inclusion of material that potentially violates one or more copyrights, this video is banned in Germany (no joke)."

Nice. I'm assuming that they refer to the video game footage, and not the pattern DE's tie.

Berkeley Law Students Applaud DOJ Report Findings, Torture Memo Lawyers Engaged in Misconduct: Urge Congress, State Bar and University to Investigate

[Update]: The Yoo situation seems all but settled as Congress is looking in to whether or not to hold hearings. The analysis below strikes me as a step in the right direction.

______________________________

From the Boalt Alliance to Abolish Torture:

The final report of the Justice Department’s Office of Professional Responsibility (OPR) released Friday found that former Office of Legal Counsel lawyer John Yoo engaged in “intentional professional misconduct” and that Yoo's colleague, former Office of Legal Counsel lawyer John Bybee, engaged in “reckless disregard of his professional obligations” in their rendering of legal justifications for the Bush Administration’s torture policy. OPR Report, p. 252, 256. The OPR report concludes that “Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.” OPR Report, p. 254.

Although Associate Deputy Attorney General David Margolis decided to downgrade the OPR findings to “poor judgment” and to refrain from referring the OPR findings to the relevant state bars, House Judiciary Committee chair, John Conyers, has disputed Margolis's decision and has scheduled Congressional hearings on the matter. Though the DOJ’s recommendation does not include sanctions, the contents of the OPR report also provide a sound basis for action by other entities with jurisdiction over the lawyers’ conduct, including the University of California and the Pennsylvania and DC Bar Associations.

“The Pennsylvania and DC bar associations and the University of California have refused to investigate the conduct of Professor Yoo until the release of the OPR report,” stated first-year Berkeley Law student [RH]. “Now they no longer have an excuse – they must fulfill their duty to investigate the professional misconduct and ethics violations spelled out in the OPR report.”

Student members of the Boalt Alliance to Abolish Torture (BAAT) at Berkeley Law School, where John Yoo is a tenured professor, applauded the findings in the report and expressed dismay over the new facts revealed, including that Yoo “knowingly provided incomplete and one-sided advice.” OPR Report, p. 252. As a tenured professor of law, the OPR report concludes “by a preponderance of the evidence” that Yoo “knowingly failed to present a sufficiently thorough, objective, and candid analysis” through “his failure to carefully read the cases, and his exclusive reliance on the work of a junior attorney.” OPR Report, p. 253.

“It was apparent that Yoo engaged in professional misconduct, but I’m still shocked by the report – that as a lawyer advising the President on a matter so important as torture, Yoo failed to carefully read the cases he was citing and relied on a junior attorney for critical legal analysis,” said first-year Berkeley Law student [TF]. “If I did the same thing on a law school assignment, I’d fail. Yet, Yoo is a tenured professor here at Berkeley.”

BAAT was formed by law students and student organizations to restore respect for the international prohibition against torture. The organization has been active in educating law students and recently sent petitions to the Justice Department, the Pennsylvania Bar Association, and the University of California Faculty Senate urging investigations of the OLC lawyers. “Thorough investigations are essential if we want to ensure that human rights violations and civil rights abuses have stopped and that they never happen again,” says BAAT member and first-year Berkeley Law student [NGN].

“Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid legal advice, and that he therefore committed intentional professional misconduct.” p. 254.

“Given Yoo’s background as a former Supreme Court law clerk and tenured professor of law, we concluded that his awareness of the complex and confusing nature of the law, his failure to carefully read the cases and his exclusive reliance on the work of a junior attorney, established by a preponderance of the evidence that he knowingly failed to present a sufficiently thorough, objective, and candid analysis of the specific intent element of the torture statute.” p. 253.

“Yoo knowingly provided incomplete advice to the client.” p. 253.

“[Yoo] knowingly misstated the strength of the Bybee Memo’s argument ‘that interrogation of [prisoners] using methods that might violate [the torture statute] would be justified under the doctrine of self-defense....’” p. 253.

Good Luck to You Februarians

Olympic Hockey FAQ

1. I'm seeing a lot of headlines about USA winning like the final game against Canada. What happened?

The men's U.S. Olympic hockey team defeated Canada 5-3 in the final game of the preliminary round of play. The Olympics began with three groups of four teams each. Each team then played three games against each of the other members in the group. A win in regulation resulted in 3 points, a win in OT or shootout resulted in 2, while a loss in either resulted in 0 or 1 point, respectively. As an aside, the points awarded in the preliminary round reflect a fair and accurate distribution of points based on the victory obtained. In the NHL, you receive 2 points for a win (in regulation, OT, or shootout), but 1 point for an overtime or shootout loss. This results in an extra point being awarded to a losing team--which rewards teams like San Jose and hurts teams like my beloved Kings.

2. So, you're saying this game was not that important?

No, that's not what I'm saying. When Cal plays Stanfurd, the game is always important, regardless of the actual stakes. Likewise, the USA-Canada hockey rivalry is storied. In 2002, for example, the Canadians beat us on our soil to win the gold. On top of that, Canada entered this tournament a favorite to win the gold (along with Russia). To beat them 5-3 sends a strong statement. We have 10x the population of Canada, but our hockey program is largely relegated to a few colleges in the midwest and northeast. Canada has players entering the lower level pro leagues at 17.

3. OK, but aside from the sentimental crap about hockey minor leagues, there was nothing at stake in this game?

Au contraire. By beating Canada, and by having a large enough goal differential, the United States is the number 1 seed and gets an automatic berth to the quarterfinals. Teams ranked between 5 and 12 must play an additional game to move on to the quarterfinals. Think of it as a bye in the NFL playoffs. With the number 1 seeding, we will play the winner of the 8/9 seeded teams--meaning we play the winner of Switzerland/Belarus. Neither is a hockey powerhouse, and neither has more than a few NHL players on their roster. Not to put the cart before the horse, but the US has a good chance of beating either of those teams and advancing to the semi-finals. In the semis, we will face either Latvia, Czech Republic, or Finland. On the other hand, Canada falls to the sixth seed and must play Germany (0-3 so far) to advance to the quarterfinals. In the quarterfinals, it will face Russia. That means of the two teams favored to win, one will go home without a medal.

4. That means the US should waltz into the gold medal game?

I'd like to think so, but you can't completely discount the Czech or Finn. I think the U.S. has a better team than either of those two countries, but there are a few subtleties of international play that can hurt us. Most importantly, the rink is about 13 feet wider, which favors a less physical, more skilled passing style of play--the traditional domain of the Europeans. Also, while team USA beat Canada, we did not exactly dominate them. They controlled the puck more than the US and got far more scoring opportunities. Thankfully, Ryan Miller made some remarkable saves. Incidentally, it appears that Miller is single-handedly keeping Buffalo in the playoff hunt. Yes, he's that good.

Friday, February 19, 2010

A Major Victory for JY

After four years, the report on JY and JB by the Justice Department's Office of Professional Responsibility has finally been released. As Patrick noted, we already had a post on a Newsweek report that the DOJ was not planning on referring JY and JB to their respective bar associations for professional misconduct.

But the released documents go much farther and are, quite frankly, astounding. The OPR Report finds that both JY and JB commited professional misconduct (JY, it claims, purposefully), and promises to notify the bar associations of the states in which they practice.

But the Report is accompanied by a 69-page memorandum by Associate Deputy Attorney General David Margolis, who writes,

For the reasons stated below, I do not adopt OPR's finding of misconduct. . . . OPR's own analytic framework defines "professional misconduct" such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis below, I cannot adopt OPR's finding of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where [JY] and [JB] are licensed.

Margolis's criticisms of the report are partly conveyed in the following segment:

In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR's own standard analytic framework. See http://www.usdoj.gov/opr/framework.pdf/. This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without exception since that time.

That's not all. The memo notes that OPR provided then-AG Michael Mukasey and then-Deputy AG Mark Filip with a 191-page draft on December 23, 2008, only 20 days before it intended to release the report publicly. While agreeing that the JY/JB memos contained errors, Mukasey and Filip so strongly criticized the substance and conclusions of the draft that they requested that their letter conveying these criticisms be made public if the OPR Report was ever publicly released.

The reason why this is a big deal is that Margolis, Mukasey, and Filip are hugely respected "lions" in the legal profession. Margolis was described by by Legal Times as "one of the Justice Department's most respected officials, a lawyer with sterling reputation earned over 42 years of service at the department." (For that quote and a countervailing view by Harpers, see here.) Before becoming Attorney General (in 2007), Mukasey was one of the most respected District Judges in the Southern District of New York. (I've recently seen a hearing in which a N.Y. State trial judge gave greater deference to a Mukasey opinion on a point of N.Y. law than it did to the theoretically binding opinion of N.Y.'s highest court.) Filip, too, was formerly a District Judge in the Chicago. According to the AP, "he was ranked first among federal judges in terms of integrity and professionalism in a 2006 poll of Chicago-area attorneys."

It's important to note here that none of these three are defending the judgement of either JY or JB. But their criticisms of the OPR Report are pretty striking. I hope to read both documents over the weekend and have some more substantive comments. In the meantime, loonies on all sides of the debate can vent their rantings here.

Thursday, February 18, 2010

Channeling the Other Christopher

Co-blogger L'Alex just sent me DE's e-mail about the closure of the East-West passage in front of 121-124. I was so lazy, I used to take the shuttle DOWN to Telegraph for a 'potle run. I can't imagine going through the library to get to the other side. What a nightmare. Thankfully, I'm not affected and can simply joke about it. And if you are affected, you might want to joke about it to dull the pain.

With that in mind, there's a few ways to read the e-mail:

1. It's really based on an previously unknown letter from Christopher Columbus to Queen Isabella. "Look I'm telling you, I will eventually get to the spice rich East. I may have to climb to the third story, and elbow past frat guys crashing at the library, but just trust me."

2. "The closure is temporary until Boalt can build a new bridge. In the meantime please use the Library, where we will collect $6 toll."

3. "I cashed in a favor with Team Obama and got Ben Affleck, Bruce Willis, and the two creepy guys from Coen brother movies to personally show up and do the digging. Their work defies gravity."

4. "Berkeley Law: Come for the legal education, but stay for the trip to Middle Earth."

5. "What better way to study tort law? 'It's like studying art in Florence or history in Athens.'"

6. Royalties from new HGTV series ("Flip that Law School") will pay for one (1) pizza lunch per semester.

Wednesday, February 17, 2010

If You Can't Beat 'Em, Laugh at 'Em

The next best thing to solving a problem is to find some humor in it. Campus budget protesters to date have somehow managed to do neither. That's why I'd like to give a great big shiny gold star for UCMeP, a student group whose mission is to protest tuition hikes through satire. SF Gate article here.

I'd write a longer post, but I'm off to support our "hardest working public servants" by joining the Adopt a Regent campaign. Tra-laa!

Tuesday, February 16, 2010

Toe Pick

Alright, I realize this may generate a lot of angry comments, Booo-urnses, rotten tomatoes, or immediate clicks to the HuffPo link in your bookmark, but I need to get this off my chest.

First, I may be slightly biased about the sport of figure skating because I think the greatest figure skating move around is two hockey players holding each other suggestively and spinning around the ice while bashing each others' brains out. Plus there's an honorable element to that (50 seconds in). OK, D.B. Sweeney moment out of the way.

Second, as a product of the former Soviet Union, I've had to watch a bit too much figure skating than I care to admit. In fact one of my earliest childhood memories is a Soviet couple winning gold by skating to Albinoni's Adagio in D (the couple on TV right now is dancing to Albinoni's Adagio in D). And I've come to the conclusion that the sport is just like network TV...very uncreative. (The limited song rotation in the sport is probably just another symptom of the lack of creativity). I realize there are specific elements that they have to hit. I get that. I also realize the limits imposed on the sport by the laws of physics (you spin faster when you move your hands closer to your body). But despite all that, the sport as a whole just borrows whatever move garners the max points at the present time. For example, all the spinners grab their skates now because that gets a tenth of point extra or something. Similarly, the jump du jour is a triple toe loop. The axle is apparently too easy these days. The phenomenon exists in other sports. The Miami Dolphins had marginal success with a new offense, and next thing you know, every friggin team is doing a version of the "wildcat offense." My earlier analogy to network TV is also appropriate because for every American Idol (a British show), you have America's Got Talent. For Dancing with the Stars, you have So You Think You Can Dance. For every successful season of 24, you have another season that takes the precise story arc, erases the penciled in recycled characters and "terrorist countries", and calls it a wrap.

Third, the NBC announcers, for figure skating at least, are TERRIBLE. "They're just savoring the moment right now." Huh? What the hell does that mean? I just muted them and pretended John Madden was calling the skating: "You know Al, if the Chinese want to take home the gold, they really can't afford to slip...and I might add, Brett Favre really looks like a kid having fun out there on the ice."

Friday, February 12, 2010

Dr. Thompson Reuters or: How I Learned to Stop Worrying and Love WestlawNext

After over six months of not considering the law whatsoever during my deferral period, I had forgotten what it was like digging through irrelevant case after irrelevant case on Westlaw or, (*cough*) Lexis. (Like I ever use Lexis.) Now that I'm finally working again and reconnecting with my inner-researcher, it pains me that, in a post-Google world, legal research is still so tedious, especially considering how much money is pumped into Westlaw and Lexis.

Anyway, according to this, it looks like you young guns (which is funny to say, since a large portion of you are probably older than me) are going to get the first crack at this new WestlawNext (which is a stupid name for a product, especially if it's supposed to replace the existing Westlaw.com product permanently). As soon as you get access, I want reviews. From this review, it sounds like Westlaw isn't screwing around this time. But, I'll want to hear from someone who's actually tried WLN out to see if it's all it's cracked up to be.

The way I see it, this will either permanently change legal research for the better, or it will be a hilarious, extremely expensive, utter failure. Either way, it's going to be great to watch unfold.

Thursday, February 11, 2010

Class of 2010 Class Campaign Community Service

D.A. asked me to post this in order to promote the event. This is something I can really get behind, and encourage you all to take part. - T

Dear 3Ls,

Come join the Boalt Hall Graduating Class as we give back to the community. This year our Class is contributing to the great work of the Alameda County Food Bank.

The Mission of the Alameda County Food Bank is:

To alleviate hunger by providing nutritious food and nutrition education to people in need, educating the public, and promoting public policies that address hunger and its root causes.

Come out, Roll up your sleeves, and Join Us as we contribute to this important cause during this time of economic crisis. Feel free to bring along Friends, Co-Workers, and Family Members.

The Food Bank is also experiencing a shortage of donated food. If you cannot make the event, you can help out by donating nonperishable foods such as canned vegetables, fruits, meats and fish; pasta and tomato sauce; beans, rice, peanut butter, cereal/oatmeal, powdered milk or nutritional beverages.

We will be tabling every Monday - Thursday for the month of February. Please sign up to volunteer or donate a nonperishable food items today!

I have something of a soft-spot bordering on outright crush for the well-executed literary device. (As an aside, I nearly jumped out of my seat when I saw this article in the latest issue of Southwest Airline's Spirit magazine about Warren Buffet's use of literary devices in his shareholder letters.) And the clip above borders on perfection in terms of executing satire--my personal favorite literary device.

As for Sarah Palin, today brings further news that she umm shall we say, didn't do her reading. She's clearly in the Tyson Zone at this point, yet she's not quite dead politically. It's a puzzle that I don't have an answer to. How can someone so clearly incapable of governing memorizing three lines be mentioned in the same breath as the Lincolns, the Jeffersons, the Roosevelts, and whoever else is on American currency. Are we so desensitized that facebook ramblings ghostwritten by some newly minted College Republican out of some East Coast liberal arts college count as contributions to the political discourse? Unfortunately, if this Vanity Fair blog post is any indication (h/t James), the answer is yes and American democracy is in deep trouble. Read the whole thing, but the part that stood out for me:

Then there’s Sarah Palin, who, egged on by other intellectually malnourished “real Americans,” has said so many startlingly stupid things in the last few days, the comedic furnaces won’t be cooling down any time soon! She’s a dynamo of dumbassity! An inferno of idiocy! Yes, Ms. Palin, 2012 is almost in your grasp! Reach for the stars, get a map, find Iran, start another pointless war we can’t afford! Score!

And he uses alliteration and other devices. Way to stick the landing. Bravo!

Monday, February 08, 2010

One Path To Becoming an Good Speller Appellate Lawyer

“We would walk into a bank with firearms, tell people to get down, take the money and run,” he said the other day, recalling five robberies in rural Nebraska in 1997 and 1998 that yielded some $200,000 and more than a decade in federal prison.

Mr. Hopwood spent much of that time in the prison law library, and it turned out he was better at understanding the law than breaking it. He transformed himself into something rare at the top levels of the American bar, and unheard of behind bars — an accomplished Supreme Court practitioner.

Sadly, Hopwood has decided to go down the conventional path to a legal education:

Mr. Hopwood, who is 34, said he hopes to apply to law school next year. Richard Friedman, a law professor at the University of Michigan who worked with Mr. Hopwood on the briefs for a recent Supreme Court case, said that he has already talked to the admissions office there about saving a spot.

Should a Gay Judge Recuse Himself In Deciding the Constitutionality of Proposition 8?

A recent column in the San Fransisco Chronicle begins, "The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay." [Hat Tip: ATL]

As the column indicates, Prop. 8's proponents (smartly) have not objected to Judge Walker on the basis of his orientation. There's been no indication of any bias in this trial, and I don't think that a judge's impartiality can be questioned on the basis of his sexual orientation.

That said, 28 U.S.C. § 455 (b)(5) states that a judge should disqualify himself if anyone within a third degree relationship to him or his spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." A decision that gay marriage restrictions violate the U.S. Constitution necessarily would have a substantial effect on the interests of gay people and those close to them. These interests would vary from the fundamental (e.g., the right to marry) to the mundane (e.g., taxation and inheritance rights). In fact, the case would affect whether a judge's same-sex partner falls within the designation of "spouse" under these very recusal rules.

I don't know (or have any interest in) anything about Judge Walker's private life, such as whether he has any minor children. But even if he is single and has no children, the legal rights that would accrue from any future relationship would be directly affected by this case.

Again, I don't think impartiality can be reasonably questioned on the basis of orientation. I'm just wondering if Judge Walker may be deciding a case in which he has an interest. (Of course, since Prop. 8 supporters have argued that gay marriage undermines the traditional institution of marriage, one could argue that all heterosexual judges should recuse themselves, too.)

Thursday, February 04, 2010

Boalt Students Speak Out Against Yoo and Bybee Findings

This morning, the Berkeley Daily Planet published an op-ed written by the heads of Berkeley's chapter of the National Lawyers Guild discussing the recent findings by Obama's Justice Department on John Yoo and Jay Bybee.

I found this section of the op-ed to be the most compelling, as it spells out further action that could be taken against Yoo and Bybee:

Despite its revised conclusion, the OPR report, at least based on what has been leaked, still seems to provide considerable evidence to support investigations of professional misconduct. From what Newsweek reported, it appears that Yoo and Bybee altered their professional legal advice to achieve a particular end: to give the appearance that torture could be committed without liability. The report also seems to echo what Justice officials have long said: that the legal reasoning offered was bunk. These are smart, experienced lawyers. If their legal advice was so shoddy, it raises an obvious red flag regarding the legal duty to give an honest and competent good-faith assessment of the law.

Criminal prosecution is also still an option. Torture and the conspiracy to commit it are felonies. And it is well established that government lawyers can be held responsible for the criminal results of their actions. Criminal investigations of the torture memo lawyers are underway in foreign jurisdictions, and, under international law, state and local governments also have a duty to investigate and prosecute alleged torturers and conspirators within their jurisdictions.

Tuesday, February 02, 2010

Check this out, (via the WSJ Law Blog): the Philadelphia Inquirer reports that historians have just located a heretofore unknown draft of the United States Constitution. Apparently it has for years been preserved, unrecognized, in a historical archive.

How Should We Deal with JAG's Discriminatory Hiring Policies?

Army JAG recruiters are coming next Wednesday in order to fill summer slots for 1Ls and recruit 3Ls to serve as JAGs after they graduate from law school.

Some student groups have suggested students who may or may not actually be interested in getting a job with JAG sign up for interviews and then tell the Army recruiters exactly how they feel about the US military's discriminatory "Don't Ask, Don't Tell" policy.

Could this make it harder for students legitimately interested in JAG to get an interview? If so, is it the best form of protest?

Are all military personnel supporting this policy by serving for an organization that's discriminatory?

Does it make a difference that all signs point to this policy being abolished in the near future?

I find the "Don't Ask, Don't Tell" policy deplorable, but I don't think the best way of demonstrating this is by blocking genuine attempts by students interested in serving in the JAG Corps (which have done some awesome things re: detainees in Guantanamo, calling out the Bush administration while putting their careers at risk, etc.).

I know that the standard way to oppose this policy is through attempting to block all recruitment efforts. Is JAG recruitment different than general recruitment as it's recruiting professionals for attorney positions within the Armed Forces? Are people who want to join JAG wrong?